ADJ10932194 · June 9, 2021

The WCJ's decision included a threshold finding of injury AOE/COE, making it a final decision subject to reconsideration, but the petition challenged an interlocutory discovery issue, so removal was denied as petitioner did not show significant prejudice or irreparable harm.

From the decision · page 1We have considered the allegations of applicant's Petition for Removal/Reconsideration, defendant's answer and the contents of the report of the workers' compensation administrative law judge (WCJ) with respect thereto. Based on our review of the record and for the reasons discussed below, we will deny the Petition as one seeking reconsideration.

The WCJ's decision included a finding of injury AOE/COE, a threshold issue making the decision final and subject to reconsideration.

Favours Defendant prevailed

This made the decision final, so the petition for removal was treated as a petition for reconsideration.

From the decision · page 2Here, the WCJ's decision includes a finding of injury AOE/COE to several body parts. Injury AOE/COE is a threshold issue fundamental to the claim for benefits. Accordingly, the WCJ's decision is a final order subject to reconsideration rather than removal.

The petition challenged only the interlocutory discovery issue of ordering additional QME panels, not the threshold injury finding.

Favours Defendant prevailed

Removal is an extraordinary remedy reserved for significant prejudice or irreparable harm, which was not shown here.

From the decision · page 2Although the decision contains a finding that is final, applicant is only challenging the WCJ's finding that good cause has not been established at this time to order additional qualified medical evaluator (QME) panels in internal medicine and psychology. This is an interlocutory decision regarding discovery. Therefore, we will apply the removal standard to our review. (See Gaona, supra.)

Lab. Code, 5904

Failure to timely petition for reconsideration of a final decision bars later challenge to the propriety of the decision before the WCAB or court of appeal.

Applied to bar late challenges to final decisions.

From the decision · page 1If a decision includes resolution of a "threshold" issue, then it is a "final" decision, whether or not all issues are resolved or there is an ultimate decision on the right to benefits. (Aldi v. Carr, McClellan, Ingersoll, Thompson & Horn (2006) 71 Cal.Comp.Cases 783, 784, fn. 2 (Appeals Board en banc).) Threshold issues include, but are not limited to, the following: injury arising out of and in the course of employment (AOE/COE), jurisdiction, the existence of an employment relationship and statute of limitations issues. (See Capital Builders Hardware, Inc. v. Workers' Comp. Appeals Bd. (Gaona) (2016) 5 Cal.App.5th 658, 662 [81 Cal.Comp.Cases 1122].) Failure to timely petition for reconsideration of a final decision bars later challenge to the propriety of the decision before the WCAB or court of appeal. (See Lab. Code, § 5904.) Alternatively, non-final decisions may later be challenged by a petition for reconsideration once a final decision issues.

Cal. Code Regs., tit. 8, former 10843(a), now 10955(a) (eff. Jan. 1, 2020)

The Appeals Board will grant removal only if the petitioner shows that significant prejudice or irreparable harm will result if removal is not granted.

Applied to deny removal petition due to lack of significant prejudice or irreparable harm.

From the decision · page 2Removal is an extraordinary remedy rarely exercised by the Appeals Board. (Cortez v. Workers' Comp. Appeals Bd. (2006) 136 Cal.App.4th 596, 599, fn. 5 [71 Cal.Comp.Cases 155]; Kleemann v. Workers' Comp. Appeals Bd. (2005) 127 Cal.App.4th 274, 280, fn. 2 [70 Cal.Comp.Cases 133].) The Appeals Board will grant removal only if the petitioner shows that significant prejudice or irreparable harm will result if removal is not granted. (Cal. Code Regs., tit. 8, former § 10843(a), now § 10955(a) (eff. Jan. 1, 2020); see also Cortez, supra; Kleemann, supra.) Also, the petitioner must demonstrate that reconsideration will not be an adequate remedy if a final decision adverse to the petitioner ultimately issues. (Cal. Code Regs., tit. 8, former § 10843(a), now § 10955(a) (eff. Jan. 1, 2020).) Here, we are not persuaded that significant prejudice or irreparable harm will result if removal is denied and/or that reconsideration will not be an adequate remedy.